In re: Nashville Senior Living v.

ELECTRONIC CITATION: 2009 FED App. 0004P (6th Cir.)
File Name: 09b0004p.06
BANKRUPTCY APPELLATE PANEL OF THE SIXTH CIRCUIT
In re: NASHVILLE SENIOR LIVING, LLC, )
et al., )
)
Debtors. )
______________________________________ )
)
OFFICIAL COMMITTEES OF UNSECURED )
CREDITORS, ) No. 08-8087, consolidated with
) related appeals nos. 08-8089, 08-8090,
Appellants, ) 08-8091, 08-8092, 08-8093, 08-8094,
) 08-8095
v. )
)
ANDERSON SENIOR LIVING PROPERTY, )
LLC, et al., )
)
Appellees. )
______________________________________
Appeal from the United States Bankruptcy Court
for the Middle District of Tennessee, at Nashville.
No. 08-07254.
Decided and Filed: June 11, 2009
Before: FULTON, RHODES, and SHEA-STONUM, Bankruptcy Appellate Panel Judges.
____________________
OPINION
____________________
MARILYN SHEA-STONUM, Bankruptcy Appellate Panel Judge. The Official Committees
of Unsecured Creditors (“Committee”), comprised solely of the non-debtor co-owners of the
Properties (defined herein), appeal an order of the bankruptcy court granting the Debtors1 authority
to sell the Properties held in a tenancy in common between the Debtors and the co-owners pursuant
to 11 U.S.C. § 363(b) and (h). The Committee sought a stay of the order from both the bankruptcy
court and this Panel. Those requests were denied, and the sale of the Properties has closed. The
good faith of the purchaser has not been challenged.
Because the bankruptcy court’s order was not stayed and the sale has closed, the Debtors seek
dismissal of the appeal pursuant to 11 U.S.C. § 363(m). The Committee argues that § 363(m) should
not apply to the aspect of the order that authorized the sale of the co-owners’ interest under § 363(h).
For the reasons set forth below, we conclude that the appeal is moot pursuant to § 363(m).
I. ISSUE ON APPEAL
The issue that would be raised in this appeal is whether the bankruptcy court erred when it
granted the Debtors’ motion to sell to a third party, pursuant to 11 U.S.C. § 363(b), (f) and (h),
property held by the Debtors and the co-owners as tenants in common. Because we conclude that
the appeal is moot, we do not reach the merits of this issue.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to decide this appeal. The United States District Court for the Middle
District of Tennessee has authorized appeals to the Bankruptcy Appellate Panel of the Sixth Circuit
and no party has elected to have the appeal heard by the district court. A final order of the
bankruptcy court may be appealed as of right. 28 U.S.C. § 158(a)(1). For purposes of appeal, a final
order “ends the litigation on the merits and leaves nothing for the court to do but execute the
1
The debtors in these chapter 11 cases, which are being jointly administered by the
bankruptcy court under Case No. 08-07254, are Nashville Senior Living, LLC, Anderson Senior
Living Property, LLC, Charlotte Oakdale Property, LLC, Greensboro Oakdale Property, LLC, Mt.
Pleasant Oakdale I Property, LLC, Mt. Pleasant Oakdale II Property, LLC, Pinehurst Oakdale
Property, LLC, Winston-Salem Oakdale Property, LLC, Briarwood Retirement and Assisted Living
Community, LLC, and Century Fields Retirement and Assisted Living Community, LLC. The
Properties at issue in this appeal were owned, in part, by only seven (7) of the eleven (11) debtors.
Those seven debtors are Anderson Living Property, LLC, Charlotte Oakdale Property, LLC,
Greensboro Oakdale Property, LLC, Mt. Pleasant Oakdale I Property, LLC, Mt. Pleasant Oakdale
II Property, LLC, Pinehurst Oakdale Property, LLC and Winston-Salem Oakdale Property, LLC.
Throughout this opinion, these debtors are collectively referred to as the “Debtors.”
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judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S. Ct. 1494, 1497
(1989) (citations omitted). An order approving a sale is a final order. Sugarloaf Ind. & Marketing
Co., LLC v. Quaker City Castings, Inc. (In re Quaker City Castings, Inc.), 337 B.R. 729, 2005 WL
3078607, *1 (B.A.P. 6th Cir. 2005) (unpublished table decision) (citing In re Sax, 796 F.2d 994, 996
(7th Cir. 1986)).
III. FACTS
Prior to filing voluntary petitions for relief under chapter 11 of the Bankruptcy Code, each
of the Debtors owned a parcel of real property improved with a facility for the elderly. Four of those
properties were located in North Carolina and three others were located in South Carolina
(collectively the “Properties”). The Debtors acquired the Properties in conjunction with a December
2006 transaction pursuant to which tenancy in common interests in the Properties were sold to
investors. A group of approximately thirty investors (the tenants in common, or “TIC”) purchased
tenant in common interests in the Properties pursuant to the December 2006 transaction reflected in
the Tenants in Common Agreement (the “TIC Agreement”). See Exhibit A to TIC’s objection to
motion to dismiss. Under the TIC Agreement, the TIC had various rights, including the right to
partition the Properties and to require unanimous approval of any sale, transfer, or exchange of the
Properties. The Debtors own approximately a 60% undivided interest in the Properties and the TIC
own 40%.
In conjunction with the TIC Agreement, the TIC signed a Debt Assumption and
Indemnification Agreement pursuant to which the TIC obligated themselves to Merrill Lynch
Capital, apparently the predecessor in interest to GE Business Financial Services, Inc. (“GE”), for
a specified portion of the debt and agreed that their fee interest was subordinate to GE. The Debtors
defaulted on their payment obligations to GE, and GE accelerated the loan. In July 2008, GE
commenced foreclosure proceedings.2 (Bankr. Ct. Docket #266).
2
In an attempt to stop GE’s foreclosure action against the TIC’s interests in the Properties,
the TIC filed a complaint with the bankruptcy court seeking an injunction and alleging that “[a]
foreclosure sale of the TIC Interests of the TIC Owners separate and apart from the ... interests of
the ... Debtors would cause irreparable harm to the bankruptcy estates.” (Bankruptcy Ct. Docket #
266.)
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On August 17, 2008, the Debtors filed voluntary petitions for relief under chapter 11 of the
Bankruptcy Code. After filing their petitions for relief, the Debtors sought authority pursuant to
11 U.S.C. § 363 to sell the Properties to the highest and best bidder. Following the marketing of the
Properties by the Debtors’ broker, Five Star Quality Care, Inc. (“Five Star”) eventually emerged as
the highest and best bidder. The Debtors and Five Star entered into an agreement regarding the sale
of the Properties. On October 10, 2008, the Debtors filed a motion seeking approval of bidding
procedures for the sale of the Properties, recognition of Five Star as the “stalking horse,” and
authority to sell the Properties pursuant to 11 U.S.C. § 363(b) to the highest and best bidder (the
“Sale Motion”). The Committee opposed the Sale Motion. The Debtors also filed adversary
proceedings against the TIC in which Debtors sought permission to sell the TIC’s interest in the
Properties pursuant to § 363(h). The Debtors filed motions for summary judgment in each of those
proceedings, and the TIC opposed those motions.
On October 21, 2008, the bankruptcy court held a hearing at which it approved the proposed
sale procedures over the objections of the Committee and set November 12, 2008 as the date for the
hearing on the approval of the sale of the Properties to the highest and best bidder. At the conclusion
of the sale hearing, the court approved the sale of the Properties to Five Star. On November 20,
2008, the court issued an order approving the sale based on, inter alia, a finding that the Debtors had
satisfied the requirements of § 363(h) (the “Sale Order”). The court entered orders granting the
Debtors’ motions for summary judgment in the adversary proceedings on November 24, 2008.
On November 20, 2008, the Committee filed a notice of appeal of the Sale Order and an
Expedited Motion for Stay Pending Appeal with the bankruptcy court. The Committee also filed
notices of appeal in the adversary proceedings on November 25, 2008,3 and again requested that the
bankruptcy court stay the sale pending appeal. On November 25, 2008, the bankruptcy court denied
the Committee’s motions for stay pending appeal. On December 2, 2008, the bankruptcy court
denied the Committee’s motion for stay pending appeal in the adversary proceedings.
3
These related appeals were assigned BAP Case No. 08-8089 through 08-8095. The Panel
has determined to consolidate the related appeals with the above-captioned appeal.
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On December 3, 2008, the Committee filed an “Emergency Motion for Stay Pending Appeal”
before this Panel.4 The Debtors filed a response in opposition on the afternoon of December 3, 2008.
That evening, the Debtors filed a “Notice of Sale Closing” in which they stated that the sales had
closed just prior to the filing of that notice, and a Motion to Dismiss the appeal as moot.5 This Panel
held a hearing on the motion to stay on December 4, 2008, and entered an order denying the motion
on December 5, 2008.
IV. DISCUSSION
The Debtors assert that the Committee’s appeal is moot pursuant to 11 U.S.C. § 363(m)
because the sale has been consummated and there is no allegation that Five Star was not a good faith
purchaser. The Committee argues that it is not moot because § 363(m) does not apply to
authorizations of the sale of the co-owners’ interest under § 363(h).
Section 363, as enacted in 1978, continued what had long been a primary function of
bankruptcy proceedings, i.e., efficient liquidation of estate assets for the benefit of creditors. The
dynamics of bankruptcy cases are in some ways ever changing, but certain truisms remain. There
will always be interested parties who will try to augment their positions by delaying tactics. As
adopted in 1978, § 363 strikes a balance between protection of the legitimate interests of non-debtor
parties in property in which the estate has a saleable interest and the rights of other claim holders in
the bankruptcy case. Sections 363(h) and (i) codify the right of the trustee,6 proceeding from the
debtor’s position as one joint tenant or tenant in common, to cause the liquidation of jointly held
property, when partition has been shown to be impracticable and when the right of first purchase of
non-debtor joint tenants or tenants in common will not be exercised. As discussed more fully below,
with respect to tenants in common, which is all that is before this panel, §§ 363(h) and (i) capture
the majority view of the respective rights of tenants in common under state law. The drafters of
4
The Committee did not file a request for stay with the Bankruptcy Appellate Panel in the
appeals from the orders granting summary judgment in the adversary proceedings.
5
The Debtors have not filed a motion to dismiss in the appeals from the order granting
summary judgment in the adversary proceedings.
6
In chapter 11 cases, the debtors in possession are recognized to have the same operational
right as trustees.
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§ 363 recognized that value of estate assets can only be achieved in an environment in which good
faith purchasers can operate without undue fear of being taken hostage. See Weingarten Nostat, Inc.
v. Serv. Mech. Co., Inc., 396 F.3d 737, 741-42 (6th Cir. 2005) (finding that § 363(m) “encourage[s]
participation in bankruptcy asset sales and increase[s] the value of property of the estate by
protecting good faith purchasers from modification by an appeals court of the bargain struck with
the debtor”). Finally, the drafters of § 363 fully understood that it must serve as a tool in dealing
with the respective rights of all parties in the estate, in general, and in specific property that is
property of the estate.
With this as background, we undertake the requested analysis of the interaction of § 363(h)
and § 363(m). Although § 363(h) and § 363(m) have been a part of the Bankruptcy Code since the
effective date of the Bankruptcy Reform Act of 1978 (the “Code”), it appears that this is the first
appellate court asked to address the interaction of these two subsections. Perhaps this reflects the
fact that neither of these subsections broke with existing common law principles. Rather, both
sections codified well established common law concepts.
Section 363(h)7 codifies the common law right of a tenant in common to seek partition by sale
under certain limited circumstances. The ability of a co-owner to force the sale of the property is one
of the risks of ownership by tenancy in common. Tenancy in common is a form of concurrent
ownership that allows more than one owner to hold an interest in the same property. They own
separate undivided shares of the whole estate. This means that, subject only to the concurrent rights
of the co-owners, each tenant in common has an equal right to possess and use the whole property.
See Avner D. Sofer, Joint Authorship: An Uncomfortable Fit with Tenancy in Common, 19 LOY . L.A.
ENT . L. REV . 1 (1998).
At common law, each tenant in common had the unconditional and absolute right to seek an
equitable action for partition. See Id. at 7. Although courts prefer to partition in kind, in
7
Section 363(h) provides, in pertinent part:
Notwithstanding subsection (f) of this section, the trustee may sell both the estate’s
interest, under subsection (b) or (c) of this section, and the interest of any co-owner
in property in which the debtor had, at the time of the commencement of the case, an
undivided interest as a tenant in common . . . .
11 U.S.C. § 363(h).
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circumstances where the physical characteristics of the property would make the partition in kind
extremely unfair to one or more of the parties, courts would authorize a partition by sale and distribute
the proceeds in a manner consistent with the rights in the property. See Id.; Brewer v. Middleton, 64
F.3d 662, 1995 WL 496718, *2 (6th Cir. 1995) (unpublished table decision) (“Though physical
division of jointly held property is the preferred method of partition, a court ‘may also order sale and
division of the proceeds when it concludes that an equitable physical division cannot be achieved.’”
(citations omitted)); see also Calumet Farm, Inc. v. Black Chip Stables (In re Calumet Farm, Inc.),
150 B.R. 664, 674 (Bankr. E.D. Ky. 1992) (finding that partition in kind of a stallion among the estate
and the co-owners was impracticable and essentially granting partition by sale pursuant to 363(h)).
Similarly § 363(m)8 is simply a codification of the treatment of appeals when the appellant
either has not sought a stay or has been unsuccessful in such effort. See Suter v. Goedert, 504 F.3d
982, 986 (9th Cir. 2007); Steinbrecher v. Steinbrecher, 759 N.E.2d 509 (Ill. 2001) (finding appeal
from an order authorizing partition by public sale became moot when the defendant failed to perfect
a stay of the judgment pending appeal). The enactment of § 363(m) was never intended to limit that
preexisting principle; rather, it is broader. See, e.g., Weingarten, 396 F.3d at 742 (“Though reflective
of the general prohibition against advisory opinions undergirding the constitutional mootness
doctrine, bankruptcy mootness under § 363(m) is broader. Even if the appeal is not moot as a
constitutional matter because a court could provide a remedy, the policy favoring finality in
bankruptcy sales reflected in § 363(m) requires that certain appeals nonetheless be treated as moot
absent a stay.”).
8
Section 363(m), which sometimes is referred to as “statutory” mootness, provides:
The reversal or modification on appeal of an authorization under subsection (b) or
(c) of this section of a sale or lease of property does not affect the validity of a sale
or lease under such authorization to an entity that purchased or leased such property
in good faith, whether or not such entity knew of the pendency of the appeal, unless
such authorization and such sale or lease were stayed pending appeal.
11 U.S.C. § 363(m); see Weingarten Nostat, Inc. v. Serv. Merch. Co., Inc., 396 F.3d 737. Pursuant
to § 363(m), an appeal is moot when the appellant has failed to obtain a stay from the order that
authorized the sale at issue, and limits the appellate court’s review of a consummated sale regardless
of the merits of any legal arguments raised against it. Parker v. Goodman (In re Parker), 499 F.3d
616, 620-21 (6th Cir. 2007).
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The bankruptcy court in this case considered approval of the sale under both subsections
(b) and (h), and the sale could not have been consummated without approval of the sale of the
interests of the non-debtor co-owners under subsection (h). The bankruptcy court’s consideration of
the sale and the motions for summary judgment on the adversary proceedings seeking authority to sell
the non-debtors’ interest under subsection (h) is clear from the Sale Order which both approved the
sale under § 363(b) and found that the Debtors satisfied the requirements of § 363(h). (Debtors’
Motion to Dismiss at 21 and 24.) Moreover, the sale of the non-debtors’ interest was a central
element of the purchase which cannot be challenged without challenging the validity of the sale. See,
Anheuser-Bush, Inc. v. Miller (In re Stadium Mgmt. Corp.), 895 F.2d 845 (1st Cir. 1990). In fact, the
sales contract gave the purchaser the unilateral right to terminate the agreement if an order approving
a sale under § 363(h) was not entered. (Bankr. Ct. Docket #328, Ex. A at 19).
In Stadium, the First Circuit Court of Appeals addressed a similar attempt to limit the
application of § 363(m) only to a sale motion, notwithstanding that the sale motion was premised on
obtaining relief under other Code sections. The owner of the home playing field of the New England
Patriots football team, Stadium Management Corporation (“Stadium”), filed a petition under chapter
11. A chapter 11 trustee was appointed and he sought to sell Stadium’s assets, including the playing
field, pursuant to § 363(b). In addition to a sale motion, the trustee filed multiple ancillary motions,
including one for approval of assumption and assignment of the Patriots’ sublease to the new
purchaser pursuant to § 365. The bankruptcy court granted the motions and the district court
affirmed. While several parties objected to the motions, no stay of the sale was obtained, and the sale
was completed, including the assumption of the sublease.
While acknowledging that the sale could not be reversed, the Patriots sought to reverse the
bankruptcy court’s order granting the motion to assign their sublease. The team argued that the
appeal was not moot pursuant to § 363(m) because they were not attempting to undo the sale, but
rather only the assignment of the sublease which was authorized under § 365, not § 363(b). Id. at
847-49.
Section 363(m) does not explicitly extend to assignment of leases under § 365. Weingarten,
396 F.3d at 742. However, the First Circuit Court of Appeals rejected the Patriots’ attempt to
“squeeze around the direct bar [of § 363(m)] by distinguishing the sale motion from the related
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motions,” and held that the appeal was moot. Stadium, 895 F.2d at 848. Because the sale motion and
related motions were “considered together and remain a package,” the court did not accept the
Patriots’ “solution.” Id. The new purchaser had conditioned its purchase, at least in part, on the
bankruptcy court’s approval of the assignment of the sublease, and therefore, without a determination
on the related motions, the new purchaser likely would not have proceeded with the sale. Id. “The
assignment of the sublease was integral to the sale and removing it from the sale would have
adversely affected the terms of the sale.” Id. at 849. Finally, the First Circuit held that the Patriots’
arguments implicated the policies of finality and protection of good faith purchasers that underlie
§ 363(m) because “‘one cannot challenge a central element of a purchase . . . without challenging the
validity of the sale itself.’” Id. (quoting Cargill, Inc. v. Charter Int’l Oil Co. (In re the Charter Co.),
829 F.2d 1054, 1056 (11th Cir. 1987) (per curium), cert. denied, 485 U.S. 1014, 108 S. Ct. 1488
(1988)).
In addition, the Sixth Circuit has not interpreted § 363(m) in the narrow manner which the
Committee would have it be interpreted by us. For example, like the First Circuit Court of Appeals
in Stadium, the Sixth Circuit has applied § 363(m) to the assignment of a lease under § 365 despite
the fact that § 363(m) does not explicitly extend to the assignment of a lease under § 365.
Weingarten, 396 F.3d at 742. Additionally, despite the fact that § 363(m) refers to transactions under
§ 363(b) and (c) undertaken only by the trustee, the Sixth Circuit has held that subsection (m) applies
whenever a party fails to obtain a stay from an order permitting the sale of a debtor’s assets and it is
not limited to conveyances by trustees. 225 Park Plaza Assocs. Ltd. P’ship v. Connecticut Gen. Life
Ins. Co. (In re 225 Park Plaza Assocs. Ltd. P’ship), 100 F.3d 1214, 1217 (6th Cir. 1996).
Applying § 363(m) to a sale which was authorized under § 363(b) and further authorized
under § 363(h) promotes the strong preference for safeguarding the finality of bankruptcy sales,
Weingarten, 396 F.3d at 741 (“[Section 363(m) reflects] the salutary policy of affording finality to
judgments approving sales in bankruptcy . . . .”); Hazelbaker v. Hope Gas, Inc. (In re Rare Earth
Minerals), 445 F.3d 359, 363 (4th Cir. 2006) (“Section 363(m) codifies Congress’s strong preference
for finality and efficiency in the bankruptcy context, particularly where third parties are involved.”),
a preference that is similar to state courts’ recognition that good faith purchasers at court-ordered sales
must receive finality or the price obtained at such sales will be depressed. See Steinbrecher, 759
N.E.2d at 518. Exceptions to the application of § 363(m) “must not be construed in such a way to
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undermine § 363’s role in protecting the finality of a sale in bankruptcy.” Parker, 499 F.3d at 626.
To provide for an exception to statutory mootness where a portion of the overall sale required
authorization under § 363(h) would “undermine § 363’s role in protecting the finality of a sale in
bankruptcy.”
The bankruptcy court here authorized the sale of the Properties under § 363(b), including the
non-debtor co-owners’ interest which was authorized specifically under § 363(h). Although it
attempted to obtain a stay, albeit without offering any supersedeas bond, the Committee did not obtain
a stay of the Sale Order and the sale has been consummated.9 The sale of the non-debtor co-owners’
interest was a central element of the sale and without it, the sale likely would not have taken place.
The sale of their interests cannot be challenged without challenging the validity of the entire sale.
This is particularly true where, as here, the co-owners’ interests are subordinate to the interests of the
lender who is the primary beneficiary of the sale. Therefore, § 363(m) moots the Committee’s
appeal.10
The Committee urges us to narrowly interpret § 363(m) and apply its “plain meaning” to find
that its appeal is not statutorily moot. It argues that:
Section 363(m) is directed only to sales under § 363(b) or § 363(c). A sale under
§ 363(h), which provides for the sale of a non-debtor co-owner’s interest in
property, is not a sale under § 363(b) or § 363(c). . . . The modifying phrase “under
subsection (b) or (c) of this section” [in § 363(h)] modifies the word “interest,” not the
phrase that follows . . . . This interpretation is consistent with the plain meaning of
§§ 363(b) and (c), both of which concern sales of estate property, rather than sales of
non-debtor property.
9
The Committee attempts to make an issue of the apparent fact that the deeds to the property
at issue were not recorded at the time of the December 4, 2008 hearing on the motion to stay, but
rather on December 5, 2008 and after. Because the sale has been consummated and all of the deeds
have been recorded now, this is irrelevant.
10
Although the Debtors do not assert that the Committee’s appeal is equitably or
constitutionally moot, the Committee addresses equitable and constitutional mootness in its response
to the Debtors’ motion to dismiss. Having concluded, however, that the appeal is statutorily moot,
we need not reach the issues of equitable or constitutional mootness. Merriweather v. Official
Committee of Unsecured Creditors of Made in Detroit, Inc. (In re Made in Detroit, Inc.), 414 F.3d
576, 583 (6th Cir. 2005).
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Committee’s objection to motion to dismiss at 11. (Emphasis in original.) In an attempt to support
its “plain language” argument, the Committee cites to a case decided by the Bankruptcy Appellate
Panel for the Ninth Circuit Court of Appeals, Clear Channel Outdoor, Inc. v. Knupfer (In re PW,
LLC), 391 B.R. 25 (B.A.P. 9th Cir. 2008).
Clear Channel was a “single asset real estate” chapter 11 case in which the bankruptcy court
approved a sale of estate property under § 363(b) on a credit bid submitted by a senior lienholder.
The bankruptcy court also approved the sale free and clear of a junior lien pursuant to § 363(f). The
junior lienholder appealed, but did not obtain a stay of the sale. The parties argued that the junior
lienholder’s appeal was moot pursuant to § 363(m) as a result of its failure to obtain a stay of the sale.
The Panel held that § 363(m) applies only to protect the portion of sale orders issued under § 363(b)
or (c), but not to the “free and clear” relief under § 363(f).
We conclude that Clear Channel does not support the Committee’s position for two reasons.
First, Clear Channel cited no case law for its conclusion and the overwhelming weight of authority
disagrees with its holding that the § 363(m) stay does not apply to the “free and clear” aspect of a sale
under § 363(f). See, e.g., Canzano v. Ragosa (In re Colarusso), 382 F.3d 51, 61-62 (1st Cir. 2004);
Wintz v. Am. Freightways, Inc. (In re Wintz Co.), 230 B.R. 840, 844-45 (B.A.P. 8th Cir. 1999);
Whatley Ranch Joint Venture, LTD v. Whatley (In re Whatley), 169 B.R. 698, 701 (D. Colo. 1994);
In re Wieboldt Stores, Inc., 92 B.R. 309, 311 n.1 (N.D. Ill. 1988); Int’l Union v. Morse Tool, Inc., 85
B.R. 666, 668 (D. Mass. 1988); Apex Oil Co. v. Vanguard Oil & Serv. Co., Inc. (In re Vanguard Oil
& Serv. Co.), 88 B.R. 576, 579-80 (E.D.N.Y. 1988); Key Bank N.A. v. IRS (In re Lake Placid Co.),
78 B.R. 131, 135 n.1 (W.D. Va. 1987); Hicks v. Pearlstein (In re Magwood), 785 F.2d 1077, 1080-81
(D.C. Cir. 1986). Perhaps more significantly, in a case that Clear Channel ignored, the Ninth Circuit
had previously applied § 363(m) to a free and clear sale under § 363(f). In re Robert L. Helms Const.
& Dev. Co., Inc., 110 F.3d 1470, 1475 (9th Cir. 1997), vacated as to one of the consolidated appeals
on other grounds, In re Robert L. Helms Const. & Dev. Co., Inc., 139 F.3d 702, 704 n.2 (9th Cir.
1998). Accordingly, Clear Channel appears to be an aberration in well-settled bankruptcy
jurisprudence applying § 363(m) to the “free and clear” aspect of a sale under § 363(f).
Second, Clear Channel is distinguishable. The Panel in that case assumed that relief under
§ 363(f) is a “term” of a sale as opposed to an “essential attribute” of the “validity” of a sale.
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However, the present case involves a sale under § 363(h), not § 363(f). Certainly, an essential
attribute of a trustee’s sale of property held by tenants in common is the trustee’s ability to sell both
the debtor’s interest and the co-owners’ interest, as here, in appropriate circumstances. Therefore,
although § 363(m) does not explicitly refer to a sale authorized under subsection (h), it nevertheless
applies because the authority for such a sale is derived from subsection (b). If no stay from the sale
order is obtained, and the sale has closed, the appeal from the sale order is moot pursuant to § 363(m).
To hold otherwise would be contrary to the long-standing and well-established principle that the
protection of § 363(m) is necessary to promote the finality of bankruptcy sales and would jeopardize
the finality of any sale in which a non-debtor co-owner’s interest is involved.
V. CONCLUSION
For the foregoing reasons, the appeal is DISMISSED as moot.
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